Appeals court: Dominion did not violate Clean Water Act

RICHMOND, Va. — Dominion Energy's discharge of arsenic from a coal ash storage site through groundwater into surrounding waters does not violate the U.S. Clean Water Act, a federal appeals court ruled Wednesday.

A three-judge panel of the 4th U.S. Circuit Court of Appeals reversed a ruling by a lower court judge who found that Virginia's largest electric utility had violated the federal law.

U.S. District Judge John Gibney Jr. ruled in 2017 in a lawsuit filed by the Sierra Club that arsenic is illegally flowing from a landfill and ponds where Dominion stores coal ash, the heavy metal-laden byproduct of burning coal to produce electricity, from a retired power plant in Chesapeake.

But the appeals court found that Gibney was wrong when he found that the pollution came from a "point source" — an identifiable source covered by the act — such as a pipe, conduit, well or channel.

The panel also upheld the lower court's ruling that Dominion had not violated a discharge permit issued by the Virginia Department of Environmental Quality.

"We are pleased with the court's unanimous ruling that Dominion Energy did not violate the Clean Water Act or its state permits. We will continue to work toward a permanent closing of the facility that ensures protection of the environment and is in the best interest of the community and our customers," Dominion said in a statement.

From 1953 to 2014, Dominion operated a coal-fired power plant at the Chesapeake Energy Center, which sits on a peninsula between a creek and the Elizabeth River, near the mouth of the Chesapeake Bay.

The Sierra Club wants Dominion to excavate the site and bring the ash to a synthetically lined landfill.

Dominion has said that capping the site in place with rainproof liners and other methods can protect water quality.

The Sierra Club sued in 2015, alleging that the seepage of arsenic from the 3.4 million tons of coal ash stored at the site into the nearby Elizabeth River and Deep Creek violated the Clean Water Act's prohibition against the unauthorized discharge of a pollutant from a point source into navigable waters.

The 4th Circuit panel agreed that arsenic had leached from the landfill and ponds into the waterways, but said it does not violate the Clean Water Act.

"We conclude that while arsenic from the coal ash stored on Dominion's site was found to have reached navigable waters — having been leached from the coal ash by rainwater and groundwater and ultimately carried by groundwater into navigable waters ... that simple causal link does not fulfill the Clean Water Act's requirement that the discharge be from a point source," Judge Paul Niemeyer wrote for the panel in the 3-0 ruling.

The Southern Environmental Law Center, which represents the Sierra Club, called the ruling disappointing, but said it "does not affect the lower court's factual determination that arsenic is leaking from coal ash pits at Dominion's Chesapeake facility and flowing directly into the Southern Branch of the Elizabeth River."

"When arsenic makes its way from unlined coal ash pits into the river ... that undercuts the goals of the Clean Water Act," said Frank Holleman, a senior attorney at the Southern Environmental Law Center.

Holleman said the group will review the ruling with the Sierra Club and then decide whether to ask the 4th Circuit to rehear the case before the full court.

In a statement, the group said the impending flooding and storm surges expected from Hurricane Florence "show just how dangerous and irresponsible it is to leave coal ash in unlined pits where it is vulnerable to hurricanes and extreme weather."

Dominion spokesman Rob Richardson said in an email that the company would be prepared if Florence impacted any of the company's ash facilities. Measures being taken ahead of time include prestaging equipment and lowering the water levels in the ash ponds to the lowest levels possible, he said.

In his ruling, Gibney found that the discharge does not pose a threat to public health or the environment. He ordered Dominion to test surface water, groundwater, sediment and aquatic life for arsenic for at least two years.

The case has been closely watched as major utilities are finding evidence of groundwater contamination at coal-burning power plants across the U.S. where landfills and man-made ponds have been used for decades as dumping grounds for coal ash.